96-001091 S. D. Mass Singh Contracting, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, June 4, 1996.

Summary: Petitioner failed to demonstrate that it was a small business concern; Disadvantaged Business Enterprise (DBE) application denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

S. D. MASS SINGH CONTRACTING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-1091

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

On May 21, 1996, a formal administrative hearing was held in this case by

televideo conference from Tallahassee to Orlando, Florida, before Daniel M.

Kilbride, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: no appearance

For Respondent: Murray M. Wadsworth, Jr.

Assistant General Counsel

Department of Transportation

Haydon-Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

Whether Petitioner qualifies for recertification as a Disadvantaged

Business Enterprise under Rule 14-78.005(7), Florida Administrative Code.

PRELIMINARY STATEMENT

This case arose from the Department of Transportation's (Department),

issuance of an intent to deny Petitioner's Application for Certification as a

Disadvantaged Business Enterprise (DBE), dated January 10, 1995. Petitioner

requested a formal hearing on January 30, 1995. This matter was referred to the

Division of Administrative Hearings on February 28, 1996 and this matter was set

for hearing in Orlando. The hearing was converted to televideo conference on

May 17, 1996 and the parties were notified. At the appointed time, Respondent

and its witness appeared at the teleconference hearing room in Tallahassee,

Florida. The hearing was to convene at 1:00 p.m. on Tuesday, May 21, 1996.

However, Petitioner was not present in Orlando. Diligent search and inquiry was

made but Petitioner did not appear. The hearing convened at 1:42 p.m. No

representative for Petitioner attended, nor did the undersigned receive any

further communication from any representative for Petitioner.

Testimony was received from the Department's DBE Certification Manager, Mr.

Howard Jemison, and three exhibits were received in evidence. No other evidence

was presented. The hearing was recorded but not transcribed. Petitioner has

not submitted proposed findings of fact or conclusions of law as of the date of

this order. Respondent filed its proposed recommended order on May 22, 1996 and

each of its proposed findings of facts have been substantially adopted in this

Order.

FINDINGS OF FACT

1. On October 17, 1994 Petitioner, in order to be recertified, submitted

its Application for Certification as a DBE to the Department.

2. Following an initial review of Petitioner's application, the Department

determined that the application as submitted was incomplete.

3. On October 27, 1994, the Department sent Petitioner a certified letter

requesting additional information including:

(a) A copy of Petitioner's financial state-

ment for the year ending December 31, 1993,

showing its gross receipts.

(b) Answers to questions 24, 25 and 26, of

Petitioner's Application.

(c) Copies of Petitioner's State Quarterly

Unemployment Tax Report (LES Form UCT-6) for

the last three quarters.

(d) A copy of Petitioner's annual report

submitted to the Department of State, Divi-

sion of Corporations, for 1994.

(e) A completed code sheet indicating the

Petitioner's area of specialty.

(f) Documentation indicating Petitioner's

ethnic status.

4. The Department's request for additional information was received by

Petitioner.

5. The Department's request for additional information notified Petitioner

that it must submit the requested information within thirty days if it was to be

considered by the Department in its determination of recertification.

6. All of the additional information requested by the Department was

critical in determining Petitioner's inclusion in the DBE Program. Specifically

it pertained to whether Petitioner continued to be qualified as a Small Business

Concern.

7. The Petitioner failed to respond to the Department's request for

additional information.

8. The Petitioner did not request an extension of time for filing a

response to the Department's request for additional information.

9. On January 10, 1995, having reviewed no response to its request for

additional information, the Department processed Petitioner's application as it

was originally provided. The Department notified Petitioner of its intent to

deny its Application based on Petitioner's failure to demonstrate that it is a

Small Business Concern.

10. On January 30, 1995, Petitioner requested a formal hearing pursuant to

Section 120.57(1), Florida Statutes. However, as indicated above, Petitioner

failed to appear for the properly noticed hearing and presented no evidence that

it qualified as a Small Business Concern. Petitioner has constructively

abandoned its request for recertification as a DBE.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding.

12. Section 339.0805(1)(c), Florida Statutes, provides in part:

The department shall certify a socially and

economically disadvantaged business enter-

prise, which certification shall be valid for

12 months, or as prescribed by 49 C. F. R.

part 23.

13. Rule 14-78.005(7), Florida Administrative Code, provides in part:

Pursuant to 49 C. F. R. Subtitle A, Subpart D,

Section 23.62, a firm seeking certification

and recertification as a DBE shall meet the

following standards. A firm which does not

fulfill all the Department's criteria for

certification shall not be considered a

Disadvantaged Business Enterprise.

(a) The firm must be a small business concern;

14. Rule 14-78.002(17), Florida Administrative Code, provides in part:

Pursuant to 49 C. F. R. Subtitle A, Subpart D,

Section 23.62 and Appendix A to Section 23.62

and Appendix B of Subpart D, "Small Business

Concern" means those business concerns as

defined in 13 C. F. R. Section 121.403(a) and

(b), which regulation is hereby incorporated

by reference and made a part of these rules.

15. Rule 14-78.007(2)(a), Florida Administrative Code provides:

Within 30 days after receipt of an appli-

cation for certification as a DBE, the Depart-

ment shall examine the application, notify the

applicant of any apparent errors or omissions,

and request any additional information the

Department if permitted by law to require. In

order for the additional information to be

considered , the DBE shall return the requested

information to the Department within 30 days

after receipt of the request. If the addi-

tional information is not received within 30

days, the Department will process the appli-

cation with the information as provided un-

less the applicant has requested and received

an extension in writing.

16. Respondent previously was certified as a DBE and is seeking

recertification. Therefore the Department bears the burden of proof. Fla Dept.

of Transportation v. J. W. C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA

1981).

17. Petitioner's failure to respond to the Department's request for

additional information made it impossible for the Department to determine

Petitioner's status as a Small Business Concern. Petitioner failed to

demonstrate that it is a Small Business Concern as defined in Rule 14-

78.007(17), Florida Administrative Code.

18. The Department correctly followed the statutory and regulatory

requirements in denying Petitioner's Application for Certification as a DBE on

January 10, 1996.

19. By failing to provide additional information to the Department or at

the formal hearing, Petitioner has abandoned its request to be certified as a

DBE.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered denying Petitioner's Application

for Certification as a DBE.

DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida.

___________________________________

DANIEL M. KILBRIDE, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of June, 1996.

COPIES FURNISHED:

Murray M. Wadsworth, Jr.

Assistant General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Surack D. M. Singh, President

S. D. Mass Singh Contracting, Inc.

5425 South Semoran Boulevard, Suite 1-A

Orlando, Florida 32822

Ben G. Watts, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, General Counsel

Department of Transportation

562 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

Final Order in this case concerning their rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the Final Order in this case.